S. Ramachandra Rao v. S. Nagabhushana Rao & Ors.
DINESH MAHESHWARI, J.
Leave granted.
2. These appeals are directed against the common order dated
28.06.2019 in Civil Revision Petition Nos. 758, 759, 760 & 761 of 2019,
as passed by the High Court of Andhra Pradesh at Amaravathi, whereby
the High Court has not approved the similar orders dated 07.02.2019, as
passed by the Court of III Additional Senior Civil Judge at Vijayawada
in four separate civil proceedings between the same contesting parties.
3. Put in a nutshell, the issue involved in the matter is concerning
the capacity in which the plaintiff-appellant’s wife, who is the General
Power of Attorney 1 holder of the appellant and is also an enrolled
advocate, could appear and act on his behalf in the said civil proceedings.
Even before passing of the orders which form the subject-mat ter of
present appeals, this issue had led to various orders by the Trial Court at
different stages of proceedings as also to a couple of orders by the High
Court in challenge to the orders so passed by the Trial Court. Therein,
the Trial Court and the High Court essentially held that merely f or the
wife of the appellant being an advocate, there was no prohibition in law
for her to act on behalf of her husband as a GPA holder but, it was made
clear that she would appear in-person as a power agent of her husband
and not in her professional capacity as an advocate. The same proposition
was iterated by the Trial Court in its orders dated 07.02.2019 i n these
very proceedings, while rejecting the objection against examination of
the witnesses by the wife of the appellant in her capacity as GPA holder.
However, in the impugned order dated 28.06.2019, the High Court has
held that in view of a Division Bench decision of the same High Court, it
was not permissible for a GPA holder to participate in the proceedings
and, therefore, while disapproving the orders under challenge, the wife
of the appellant has been given liberty to act as an advocate on behalf of
her husband, the plaintiff, in these cases.
1 ‘GPA ’, for short.
459
4. With the outline as aforesaid, we may take note of the relevant
background aspects as follows:
4.1. A civil suit for partition of certain properties, being O.S. No.
368 of 1995, came to be filed before the said Trial Court, wher ein the
appellant was arrayed as the 3 rd plaintiff. The appellant would submit
that on 20.04.1987, he had executed a GPA in favour of his brother, the
1st respondent herein (the contesting respondent), who had prosecuted
the said civil suit for partition. A decree was passed in the said suit on
the basis of a compromise memo filed on 17.09.1995. The appellant
would allege that he was not aware of filing of the said civil suit; that the
decree was detrimental to his interest and was fraudulently obtained;
and therefore, he revoked the GPA in favour of the 1 st respondent on
26.01.1996. Later on, the appellant executed another General Power of
Attorney dated 25.01.1997 in favour of his wife. Thereafter, on behalf
of the appellant, I.A. No. 634 of 1997 was filed in the said O.S. No. 368
of 1995 by his new GPA holder (his wife) for recalling the judgment and
decree passed in the suit. This apart, the appellant instituted three more
civil suits, being (i) O.S. No. 388 of 1997, for declarat ion of title,
possession, partition, and mesne profits; (ii) O.S. No. 104 of 1998, for
rendition of accounts in relation to actions and bank transactions by the
contesting respondent in his erstwhile capacity as agent of the appellant;
and (iii) O.S. No. 445 of 1998, for partition and mesne profits.
4.2. While the said four civil proceedings remained pending, the
GPA holder of the appellant, i.e., his wife, graduated in law and she was
enrolled as an advocate in the year 2011.
4.3. On 27.09.2011, an application, being I.A. No. 1308 of 2011,
was filed in said I.A. No. 634 of 1997 in O.S. No. 368 of 1995 under
Order III Rule 2 read with Section 151 of the Code of Civil Procedure,
19082 read with Section 32 of the Advocates Act, 19613 read with Rules
32 and 33 of the Civil Rules of Practice in Andhra Prades h read with
Section 120 of the Evidence Act, 1872 with the prayer that t he GPA
holder of the appellant be permitted to appear in person; and to plead,
argue and do all necessary acts for conduct of proceedings. Simila r
applications were filed in two of the aforesaid civil suits, being I.A No.
1307 of 2011 in O.S. No. 104 of 1998 and I.A. No. 1306 of 2011 in O.S.
No. 388 of 1997. The Trial Court, by its similar orders dated 19.02.2018,
2 ‘CPC’, for short.
3 ‘the Act of 1961’, for short.
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
allowed the applications so moved and granted the prayer so made while
rejecting the contentions urged on behalf of contesting respondent with
reference to Order III Rule 2 CPC. The said order 19.02.2018, as passed
in relation to O.S. No. 368 of 1995 reads as under: -
“1. This petition is filed under Order 3 Rule 2 Section 151 CPC
and Section 32 of Advocates Act, 1961 & Rule 32 and 33 of Civil
Rules of practice in A.P. and Evidence Act Sect.120 praying t o
allow the petitioner to represent her husband the plaintiff i n the
above suit, before the Hon’ble Court to appear in person, to plead
and to all acts necessary in the conduct of above proceedings.
2. The Petitioner who is the authorized GPA holder of the plaintiff
in the suit, seeks permission of this Court, to permit her to represent
the plaintiff in person. The Petitioner says that, as she is the wife
of plaintiff she can protect the best interest of her husb and, and
as her husband is staying in a far away place and as he c annot
attend the court in person she may be permitted to represent he r
husband in person to conduct the suit and she in support of her
contentions relied upon a judgment reported in AIR 2003 A.P.
317, Sundar Raj Jaiswal and others vs. Smt.Vijaywa Jaiswal.
3. Wherein it was held that, under Section 32 of the Advocate Act
the court may permit appearance in a particular case perm itting
any person other than the Advocate and that, under the said
provision a discretionary power was given to the court to permit
appearance to any non-advocate for party. it was further hel d in
the judgment that, the trial court granted permission for the Power
of Attorney holder of the respondent and the said Pow er of
Attorney has been helping the court by appearing fo r the
respondent and there is no remark noticed by the court below. It
is always open for the Court to withdraw or cancel permission if
the Power of Attorney holder is ‘unworthy or reprehensible. Hence
sought permission to allow her to represent her husband/plaintiff
in the suit.
4. The objection of respondent was that as per Order 3 Rule 2
appearance may be in person or by recognized agent or by pleader,
which is once again subject to the person knowledge of th e
transactions, but never empowers to argue on behalf of the
executant, as such the above provisions are not correct for asking
461
to plead in the court on behalf of plaintiff. He further opposed the
petition stating that, the petitioner is not resident of Vijaywada, as
such, it would be difficult for them to serve notice on the petitioner
in case of any applications filed in the suit. Hence, opposed the
petition.
5. However this court having considered the petition and counter
averments opines that, when the petitioner was permitted by this
court at the inception of the suit itself, to represent as GPA, now
the permission is sought by her to represent her husband in person,
instead of by a pleader. Moreover, she states to be the wife of the
original plaintiff, who in the opinion of this court can protect the
best interest of her spouse and as held by his lordship, in the above
reported judgment that, the permission cannot be withdrawn at
the instance of petitioners. More so, when there is nothing on
record to show that, the GPA holder has created an unhealt hy
atmosphere on indiscipline situation or exchanged words.
6. So when the Hon’ble High Court held that, when once the
permission so granted can be withdrawn, if the acts of GPA
representing the party in person is in derogative to the interest of
the original party, the petitioner herein being the wife of plaintiff,
in the opinion of this court can be permitted to represent in person
on behalf of her husband. With regard to the other objection of
respondent that, service of notice on the petitioner in case of any
applications filed, would be difficult as she does not reside at
Vijayawada, as the petitioner at the time of arguments submitted
that she will stay at Vijayawada, till the suit is disposed off, this
court does not find any grounds to disallow her plea.
7. Accordingly petition is allowed.”
(emphasis supplied)
4.4. The aforesaid orders dated 19.02.2018 were challenged by
the contesting respondent in the High Court. The High Court by its
common order dated 20.04.2018 in CRP Nos. 1784, 2221 & 2366 of
2018, confirmed the orders of the Trial Court, but while clarifying that
the wife of the appellant will appear in person as power age nt of the
appellant but not in her professional capacity as a lawyer . This order
dated 20.04.2018 by the High Court reads as under: -
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
“These three revisions arise out of the orders passed by
the III Additional Senior Civil Judge, Vijayawada, allowing the
applications filed by the 1st respondent herein under Ord er III
Rule 2 of the Code of Civil Procedure read with Section 32 of the
Advocates Act, 1961.
2. Heard Mr. V.S.R. Anjaneyulu, learned counsel for the
petitioner and Smt. Hemalatha Suryadevara, the General Pow er
Agent of the 1st respondent herein, who was the plaintiff in all the
three suits.
3. The 1st respondent, who was the plaintiff in thr ee
different suits namely O.S.Nos.368 of 1995, 389 (sic) of 1997
and 104 of 1998, is the principal and his wife Smt. Suryadevara
Hemalatha, is his power agent. It appears that the 1st respondent
and the plaintiff was all along represented by the counsel before
the Court below. One of the suits already got disposed of. The
other two suits are now pending. Even in the disposed of suit,
some applications have been filed.
4. In the meantime, the wife of the 1st respondent filed
applications in all the three suits, under Order III Rule 2 of CPC
for representing her husband and to appear in person, to ple ad
and to conduct the above proceedings. These applications were
allowed by the Court below, forcing the 1st defendant in two suits
and the sole defendant in the third suit to come up with the above
revisions.
5. The objections of the learned counsel for the petitioner
to the orders impugned in these revisions are two fold namely (i)
that the wife-cum-General Power Agent of the 1st respondent
also happens to be a lawyer, but she can either appear as a counsel
or as a power agent and not as both and (ii) that the address for
service should be intimated by the 1st respondent in Vijayawada
to enable the petitioners to serve notices and summons.
6. The power agent of the 1st respondent, who appeared in
person before me, stated that she is not seeking to appe ar as an
advocate for the 1st respondent but she is seeking to appear only
as the power agent of the 1st respondent. There can be no
objection to a party to a proceeding to appear through the power
agent. Order III Rule 2 of CPC provides for the same and to that
463
extent the order of the trial Court allowing the applications cannot
be found fault with. Once an application under Order III Rule 2
CPC is allowed, the power agent has two options, first option is to
appear in person as a power agent and the second option i s to
engage an advocate herself. Both cannot be combined in a single
order and that is the objection of the learned counsel f or the
petitioner. That objection is sustainable in law.
8. But in so far as the second objection is concerned, if the
1st respondent is appearing only as a power agent of a party, the
question of informing the local address for service does not arise.
It is only when a lawyer is engaged, the question of furnishing a
local address for service would arise.
Therefore, all the Civil Revision Petitions are disposed of
confirming the orders of the trial Court and clarifying tha t Smt.
Suryadevara Hemalatha, will appear in person as a power agent
of the 1st respondent and will not appear in her professio nal
capacity as a lawyer .
As a sequel thereto, miscellaneous petitions, if any, pending
shall stand closed.”
(emphasis supplied)
4.5. Thereafter, another application of similar nature in relation to
O.S. No. 445 of 1998 was considered and allowed by the Trial Court by
its order dated 24.09.2018, while rejecting similar objectio n of the
respondent and while observing as under: -
“The respondent opposed the petition stating that, as per
Order 3 rule 2 CPC appearance maybe in person or by recognized
agent or by a pleader, which is once again is subject to the personal
knowledge of the transactions and it never empowers to argue on
behalf of the executants, as such the provisions under which this
petition is filed is not correct to seek permission to represent and
plead on behalf of the plaintiff in the suit.
However, this court considering the petition and counter
averments opines that, when GPA is executed in favour of the
petitioner authorizing her to represent the plaintiff in the suit, and
she as GPA also intends to plead on behalf of the plaintiff in the
suit as she can protect the best interest of her husband, and when
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
as per Sec.32 of Advocate Act any court or authority or person
may permit any person, not enrolled as to advocate under Act, to
appear before it, in any particular case, petitioner being the
authorized agent of plaintiff in the suit, seeking permission to appear
in person and conduct the suit on behalf of her husband seems
reasonable.
Moreover, when the permission granted can be withdrawn
by the Court, if the acts of GPA representing the party, in person
in derogative to the interest of the original party. So, the petitioner
being the wife of plaintiff in the suit seeking permission to represent
in person on behalf of her husband seems justice and necessary .
Hence, for the reasons stated above, I am inclined to allow t he
application. Accordingly, the petition in allowed.”
(emphasis supplied)
4.6. The aforesaid order dated 24.09.2018 was challenged by the
contesting respondent in the High Court in CRP No. 6924 of 2018. This
petition was also dismissed by the High Court by its order dated
14.12.2018, which may also be usefully reproduced as under: -
“Aggrieved by an order passed by the trial Court permitting the
1st respondent to be represented by his wife as the General Power
of Attorney holder, to act, to appear and to plead, the defendant in
the suit has come up with the above revision.
2. Heard Mr. V .S.R. Anjaneyulu, learned counsel for the petitioner.
The G.P.A. holder of the 1st respondent takes notice.
3. The 1st respondent herein has filed a suit in O.S.No.445 of
1998 for partition. It appears that the 1st respondent is a re tired
I.A.S. Officer and his wife who is General Power of Attor ney
holder is an Advocate enrolled in the Bar Council of Andhra
Pradesh.
4. Therefore, the 1st respondent has appointed his own wife as
General Power agent. This fact is not disputed.
5. When an attempt was made by the G.P.A. holder to act in dual
capacity, both as a General Power of Attorney and as an advocate
for her husband, this Court directed that she can only opt for one.
465
6. Therefore, the 1st respondent filed I.A.No.556 of 2018 seeking
permission for the G.P.A. holder to plead, present and argue his
case in person. This application has been allowed by the trial Court
by an order dated 24-09-2018. It is against the said order that the
revision has been filed.
7. The contention of Mr. V.S.R. Anjaneyulu, learned counsel for
the petitioner is that G.P.A. holder, having a personal inte rest,
cannot plead on behalf of the party. Reliance is placed upon the
clause contained in the deed of a General Power of Attorney.
8. But clauses 2 and 3 of the deed of General Power of Attorney
authorises the G.P.A. holder to sign and verify plaints, writ ten
statements, affidavits etc., and also to appear in all courts.
Therefore, the General Power of Attorney certainly authori ses
the holder to plead on behalf of the 1st respondent.
9. Merely because the wife happens to be a lawyer, there is no
prohibition in law for her to plead the case of her husband b y
holding a general power. The bar for a lawyer to take a dual role,
is in the context of conflict of interests, which correlate to ethical
principles in respect of the profession. But when a lawyer’s spouse
is involved in litigation, there can be no bar for the lawyer to act
as the power agent of the spouse, for doing whatever is authorised
by the deed of General Power of Attorney to do .
10. Moreover, I do not know in what way the petitioner is aggrieved
by such an act. If at all there are certain things only wi thin the
exclusive knowledge of the principal that can certainly be raised
as a point. Therefore, I find no merits in the revision. Hence, the
Civil Revision Petition is dismissed. No costs.
As a sequel thereto, miscellaneous petitions, if any, pending
shall stand closed.”
(emphasis supplied)
4.7. On the other hand, when the said proceedings w ere to
progress further, the contesting respondent filed separate appl ications,
this time contending that the wife of the appellant, who was representing
him as GPA holder, was not entitled to examine the witnesses. The Trial
Court, yet again, rejected the objection of the contesting respondent by
its separate but substantially similar orders dated 07.02.2019. The order
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
so passed by the Trial Court in relation to O.S. No. 368 of 1995 reads as
under: -
“1. This petition is filed under Sec.151 CPC by the petitione r
seeking the court to prevent the wife of the plaintif f who is
representing the plaintiff in person, as his GPA from exami ning
the witnesses.
2. The Petitioner says that, the 1st plaintiff in the suit is being
represented by his wife as GPA holder from 1998 onwards, and
as on the said date the suit was being represented by different
counsel. The 1st respondent who came on record as GPA, of the
plaintiff filed an application under Order 3 Rule 2 CPC seeking
permission to represent the 1st plaintiff in person and the said
application was allowed, against which this petitioner prefer red
CRP 1784/2018, which was disposed of on 20-4-2018, directing
the GPA holder not to conduct the suit proceedings both in the
capacity of an advocate as she is enrolled in bar, and as GPA.
The petitioner says that, when the 1st respondent nowhere stated
that, the GPA in her name was cancelled, and she was authorized
to make personal appearance on behalf of the plaint iff, the
respondent has to only engaged a counsel represent in her personal
capacity. Hence, the 1st respondent cross examining the witnesses
in person is against the orders of Hon’ble High Court in CRP
1784/2018. Hence, this petition to declare that the 1st respondent
who is GPA holder is not authorized to participate in the cross
examination of the witnesses.
3. The 1st respondent opposed the petition stating that, she as a
GPA of her husband/plaintiff is appearing in person, after obtaining
permission from this Court, and though she is enrolled in bar
council, she is not appearing in her professional capacity, in this
matter and thus she is appearing in person, as such, she is entitled
to cross examine the witnesses and that petitioner cannot direct
the plaintiff, as to how she has to conduct the case i.e., e ither
through a counsel or in person. The Hon’ble High Court in CRP
No.1784/2018 stated that the GPA holder cannot represent the
court both as a GPA and in her professional capacity, but did not
say that she cannot in her personal capacity conduct th e suit
proceedings. Hence, she being the GPA of her husban d is
competent to do the suit in person that includes th e cross
examination of witnesses.
467
4. Heard both sides.
5. Both the parties did not adduce any oral or documenta ry
evidence.
“Whether the respondent cannot be permitted to participate in the
examination of witnesses as prayed by the petitioner?”
POINT:
6. The Petitioner’s objection for the 1st respondent to cross
examine the witnesses herself is that, she being the GPA of the
plaintiff can only engage a counsel but cannot participate in the
trial and examine the witnesses or argue the matter. Though she
was permitted to represent the suit proceedings in person, it does
not confer her with the authority of doing any such acts, which a
legal practitioner would do. But, the respondent says that, when
she was permitted by this Court to conduct the suit proceedi ngs
as GPA of her husband- 1st plaintiff in person, it is for her to
decided, whether she would continue the suit in person or engage
any counsel to represent the suit proceedings and that this petitioner
has no business to direct the respondent as to adopt to whi ch
course in the conduct of the suit proceedings.
7. The 1st respondent in support of her arguments has relied upon
the following two judgments 1) Surender Raj Jaiswal and others
vs. Vijaya Jaiswal, AIR 2003 AP 317; 2) Prabha P.Shenai vs.
Ispat Industries Limited 2016 Law Suit (Bombay) 271. In the said
judgment referred (1) above at paragraph No.13 his Lordship
opined that
I do not see any bonafides on the part of the petitioners
to insist the respondent to prosecute either personally or appoint
an Advocate. The respondent herself no doubt is empowered
to prosecute the particular case but due to the relationship of
herself with her husband and the acquaintance of the case,
she reposed confidence fully in her husband and appointed
him as her Power of Attorney to appear on her behalf in a
particular case and, therefore, the application filed by the
petitioners herein was rightly dismissed by the Court bel ow.
The Trial Court granted permission for the Power of Attorney
Holder of the respondent and the said Power of Attorney has
been helping the Court by appearing for the respondent and
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
there is no remark noticed by the Court below. It is alwa ys
open for the Court to withdraw or cancel permission if the
Power of Attorney Holder is unworthy or reprehensible.
8. This Court considering the arguments submitted by either side
and the principle held in the above referred judgments opines that,
when once the respondent was permitted to represent th e 1st
plaintiff who is no other than her husband, in person opining that
no person can protect the Interest of the spouse, and act in the
best Interest of the spouse other than the wife/husband, hers elf/
himself, permitted the respondent, who is the wife of 1st plaintiff,
and also GPA to represent the suit proceedings in person and
because she was permitted and representing the suit in perso n,
now she wants to cross examine the witnesses also, by herse lf,
as rightly put forth by the respondent what locus standi does the
petitioner have in objecting the respondent, in cross examining the
witnesses on behalf of the plaintiff, and her husband? when there
is no bar for a party to cross examine the witnesses, the respondent
who is representing the plaintiff as a GPA and permitted to represent
in person intending to cross examine the witnesses by herself be
curtailed? In fact the principle held under ref.(1) above judgment
aptly applies to the case on hand, because in this case also, like in
the above referred case, the GPA holder and the plaintiff are
husband and wife, as such this court opines that, unless the court
opines to withdraw or cancel the permission, if the pow er of
attorney holder is found unworthy there can be no hindrance for
the respondent to continue to represent the plaintiff in person.
9. As held in judgment in reference No.2 that-
In the present case, considering the fact that the const ituted
attorney in the present case is not only the husband of the
plaintiff but her predecessor in title, who actually carried out
the work in question and to whom the amounts claimed in the
suit were due before he assigned his entitlement to the plaintiff,
there is a preeminent case for permitting him to represent the
plaintiff and argue her case in this suit. I have according,
permitted him to advance arguments for the plaintiff.
10. The said principle also is apt to the case on hand, as in this suit
also the 1st respondent was permitted to represent the 1st plaintiff
469
in person, so she can very well represent the 1st plaint iff and
argue the case in this matter, and the petitioner cannot raise a ny
objection with regard to the entitlement of the responden t, who
was permitted to represent in person; with regard to the bar
enshrined by his lordship in CRP 1784/18 that, the respondent
being GPA holder cannot represent the matter in her professional
capacity, when certainly the respondent is not representing the
Court as an advocate, and she is representing the Court, a s the
wife of plaintiff who was permitted to represent the 1st plaintiff in
person being his GPA holder and not as an advocate, she cannot
be curtailed from cross examining the witnesses. Accordingly ,
this point is answered against the petitioner.
11. In the result, the petition is dismissed.”
(emphasis supplied)
4.8. The aforesaid orders dated 07.02.2019 were challenged before
the High Court in Civil Revision Petition Nos. 758, 759, 760 and 761 of
2019, which have been considered and decided by the impugned common
order dated 28.06.2019.
4.8.1. In the impugned order dated 28.06.2019, the High Court,
after taking note of the background aspects and stand of the respective
parties, stated the point for determination in the following terms: -
“9. The short point that arises for consideration is “Whether t he
G.P.A. holder of the plaintiff can be permitted to act like a counsel
and cross-examine the witnesses?”
4.8.2. Thereafter, the High Court took note of the prev ious
applications moved in these matters and the orders passed t hereupon,
while stating its construction of such previous orders, inter alia, in the
following terms: -
“12. The said order came to be passed in the month of December,
2018. As stated above, earlier to this order, a common order was
passed in C.R.P.Nos.1784, 2221 and 2366 of 2018, wherein, the
applications filed under Order III Rule 2 of C.P.C., read with
Section 32 of the Advocates Act were disposed of clarifying that
Smt.S.Hemalatha will appear in-person as a power of agent to
the first respondent and will not appear in her professional capacity.
The said applications came to be filed under Order III Rule 2 of
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
C.P.C., for the following relief, to represent her husband; to appear
in person to plead and conduct the above proceedings.
13. The said applications were allowed by the Court below, forcing
the first defendant to come up with the above three revis ions.
The objections of the learned counsel for the petitioner the rein,
were two fold, namely (i) that the wife-cum-General Power agent
of first respondent also happens to be a lawyer, but she can either
appear as a counsel or as a power agent and not as both and (ii )
that the address for service should be intimated by t he first
respondent in Vijayawada to enable the petitioners to serve notices
and summons. The Hon’ble High Court held that once an
application under Order III Rule 2 CPC is allowed, the powe r
agent has two options; the first option is to appear in person as a
power agent and second option is to act as an Advocate hers elf.
Both cannot be combined in a single order.”
4.8.3. Thereafter, the High Court took note of the reasons that
prevailed with the Trial Court in passing the impugned orders dated
07.02.2019, and proceeded to allow the revision petitions, essential ly
with reference to decision of the Division Bench of the High Court in
the case of Madupu Harinarayana @ Haribabu rep. by his G.P.A.,
T. D. Dayal v. 1st Additional District Judge, Kadapa and Ors. : 2011
(2) ALT 405 (D.B.) and Section 32 of the Act of 1961. The High Court
expressed its views against participation of the wife of the appellant in
the proceedings as GPA holder, while giving her liberty to conduct the
case as an advocate and while observing as under: -
“16. The Hon’ble Division Bench in the Judgment referred to
above observed that any person approaching the court seeking
some legal redressal has to scrupulously, and without exception,
follow the procedural rules and regulations framed by the High
Court. The rules made by the High Court, Civil Rules of Practice
and Circular Orders and Criminal Rules of Practice and Circular
Orders as well as various other procedural rules made un der
various statutes supplant the two codes. A party to the proceeding
can either himself appear as a party in person to venti late his
grievance or engage an advocate enrolled on the rolls of the Bar
Council of Andhra Pradesh (a statutory professional body
constituted under the Advocates Act, 1961). A party to the
proceedings may authorize another by giving a Power of Attorney
471
to appear in the case, file affidavits, instruct lawyers and act on
his behalf. It was held that the G.P.A. holder cannot plead and/or
argue for his principal. If a person, other than an advocate enrolled
on the rolls of the Bar council, appears in court, it is an of fence
punishable under law. Power of Attorney Act defines “power-of-
Attorney” to include any instrument empowering a specified person
to act for and in the name of the person executing i t. If so
empowered, the donor may execute any instrument or do anything
in his own name and signature by the authority of the donor of the
power. Section 4 of the POA Act casts an obligation on the POA
to verify the affidavit, give a declaration or other sufficient proof
of the POA, and to deposit the same in the High Court or the
District Court within the local limits of whose jurisdiction the
instrument may be. Order III C.P.C., deals with recognized agents
and pleaders. Rule 1 thereof enables the recognized agent to make
appearance, application or act in any court. Rule 2 ex plains
recognized agents as “agents of parties by whom suc h
appearances, applications and acts may be made or done”. These
are the persons holding POA authorizing them to mak e an
application and act on behalf of such parties. Section 2(a) of the
Advocates Act defines, “Advocate” to mean an advocate entered
in any roll under the provisions of the said Act. Section 2(15) of
the CPC defines “Pleader” to mean any person entitled to appear
and plead for another in court.
*** *** ***
18. After referring to the provisions of Advocates Act and the
Rules made by the High Court and the circulars issued, this Court
in Madupu Harinarayana’s case (supra) held that all the
pleadings in the proceedings should be made by party in person as
recognized agents. A party in person, and a recognized agent,
have to make an appointment in writing (vakalatnama) dul y
authorizing the advocate to appear and argue the case. Only an
advocate entered on the rolls of the Bar Council of Andhra Pradesh,
who has been given vakalat and which has been accepted by
such advocate, can have the right of audience on behalf of the
party, or his recognized agent, who engaged the advocate. Section
32 of the Advocates Act empowers the Advocate to permit any
non-advocate to appear in a particular case. This means that any
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
person has to seek prior permission of the Court to argue the case
if he is not Advocate enrolled under the Advocates Act.
19. From the above observations made, it is clear that Section 32
of the Advocates Act empowers the court to permit any non-
advocate to appear in a particular case after seeki ng prior
permission of the court to argue a case if he is not an Advocate.
It would be appropriate to extract Section 32 of the Act which is
as under:
“32. Power of Court to permit appearances in particular
cases.—Notwithstanding anything contained in this Chapter,
any court, authority, or person may permit any person, not
enrolled as an advocate under this Act, to appear before it or
him in any particular case.”
20. Prima-facie, a reading of the above provision vis-à-vis the
law laid down by the Division Bench show that it is only t he
Advocate, who has enrolled under the provisions of the Advocates
Act, has the right of practice in any court. Any violation of the
same would amount to committing the offence under Section 35
of the Evidence Act.
21. In the instant case, the wife of the plaintiff, who is representing
her husband, intends to examine the witness as a G.P.A. holde r.
She is not arguing the matter as an Advocate for the plaintiff nor
she is cross-examining the witness as a lawyer for the first plaintiff,
though she is a lawyer practicing in the said court.
22. Though the judgment in C.R.P.No.6924 of 2018 between the
same parties held that there is no bar for the petitioner to participate
in the trial, but the Division Bench judgment of this Court prohibits
participation by the G.P.A. Holder. The same was not brought to
the notice of the learned Judge. As observed by me earlier , the
Division Bench of this Court categorically held that the G.P.A.
holder cannot plead and/or argue for his principal. If a person,
other than an Advocate enrolled on the rolls of the Bar Council,
appears in the Court it is an offence punishable under law.
23. It may be true that the respondent herein, who is also a n
Advocate, is doing the case of her husband as a General Power
of Attorney holder. It may also be true that the same m ay not
cause much prejudice to the petitioners. But, in view of the judgment
473
of the Division Bench of the combined High Court, C.R.Ps. are
allowed, however, giving liberty to the respondent to conduct the
case as an Advocate since she is a practicing Advocate as well.
24. There shall be no order as to costs. Miscellaneous Peti tions
pending if any in these revisions shall stand closed.”
(emphasis supplied)
5. A long deal of arguments has been advanced before us in these
appeals preferred against the order so passed by the High Court. It has
been contended on behalf of the appellant that the High Court has totally
misdirected itself and has failed to consider that the issue in question
relating to the appearance of wife of the appellant as his G PA holder
stood concluded in these proceedings by virtue of the previous orders of
the High Court dated 20.04.2018 and 14.12.2018; and such an issue
could not have been re-opened at all, for operation of the doctrine of res
judicata. In the other limb of submissions, it has been argued on behalf
of the appellant that the wife of the appellant has a right to conduct the
legal proceedings as his GPA holder; and there is no explicit bar under
any law which prevents the wife of the appellant to act as his GPA
holder merely for her being an enrolled advocate. On the other hand, it
has been contended on behalf of the contesting respondent tha t the
previous orders between the parties granting permission to the wife of
the appellant to conduct the cases do not attract the doctrine o f res
judicata, for having been passed in ignorance of the statutory directions
in Section 32 of the Act of 1961. In the other segment, it has b een
argued on behalf of the contesting respondent that as an officer of the
Court, an advocate cannot plead or cross-examine wi thout filing a
vakalatnama and the jurisprudence of this Court as also of the High
Courts does not allow an advocate to appear as a power of a ttorney
holder. Various authorities have been cited by the learned c ounsel for
the parties in support of their respective contentions; we shall deal with
the relevant of them at the appropriate juncture hereafter.
6. Having regard to the background aspects and the rival
contentions, we may, first of all, take up the issue of res judicata before
moving to any other issue raised in these appeals.
7. Learned counsel for the appellant has contended, with reference
to various decisions including that in the case of Y.B. Patil & Ors. v.
Y.L. Patil : (1976) 4 SCC 66 , that the doctrine of res judicata is
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
attracted not only in separate subsequent proceedin gs but also at
subsequent stage of the same proceedings and hence, the concl uded
orders passed earlier in these proceedings are binding on the parties.
The learned counsel has argued that the issue as regards conduct of the
case by the wife of the appellant on his behalf and in her cap acity as
GPA holder has attained finality in these proceedings with the concluded
orders dated 20.04.2018 and 14.12.2018 as passed by the High Court
and such an issue cannot be reopened at the subsequent stage of these
very proceedings. It has been contended, with reference to the several
decisions, including that in the case of Gorie Gouri Naidu (Minor) v.
Thandrothu Bodemma: (1997) 2 SCC 552 , that even an erroneous
decision, if rendered between the same parties, binds them if the same
had been decided by a Court of competent jurisdiction. The lear ned
counsel has also referred to the decision in Makhija Construction &
Engg. (P) Ltd. v. Indore Development Authority : (2005) 6 SCC 304
as regards the distinction between a precedent and the operation of the
doctrine of res judicata; and to the decision in S. Nagaraj (Dead) by
Lrs. & Ors. v. B.R. Vasudeva Murthy & Ors.: (2010) 3 SCC 353 to
submit that the orders as passed in this matter by the H igh Court on
20.04.2018 and 14.12.2018 cannot be ignored even on the principles of
per incuriam because those principles have relevance to the doctrine
of precedents but have no application to the doctrine of res judicata.
8. It has, however, been strenuously argued by the learned senior
counsel for the contesting respondent that the said orders dated
20.04.2018 and 14.12.2018 cannot operate as res judicata because
therein, the Court had misapplied the procedural law and had not taken
into consideration the impact of Section 32 of the Act of 196 1. In this
regard, a 3-Judge Bench decision of this Court in the case of Mathura
Prasad Bajoo Jaiswal & Ors. v. Dossibai N. B. Jeejeebhoy : (1970)
1 SCC 613 has been strongly relied upon. It has been contended that
the principles in Mathura Prasad (supra) would apply to both the
questions of jurisdiction as well as the situations where a decision of the
Court sanctions something which is illegal. The learned counsel would
submit that Section 32 of the Act of 1961 entitles only the non-advocates
to seek permission of the Court to plead on behalf of any party and the
same permission cannot be sought by an advocate. The contention has
been that the previous orders of the High Court, having ignored t he
import and effect of Section 32 of the Act of 1961, do not operate as res
judicata in the current proceedings. Another decision of this Court in
475
the case of Allahabad Development Authority v. Nasiruzzaman &
Ors.: (1996) 6 SCC 424, has also been cited to contend that this Court
has clarified the law that where the consequence of giving effect to res
judicata would be of enforcing an order standing contrary to statutory
direction or prohibition, the doctrine of res judicata has no applicability.
9. The basic principles of res judicata are generally specified in
the principal part of Section 11 of the Code of Civil Pr ocedure, 1908
which reads as under:-
“11. Res judicata. —No Court shall try any suit or issue in which
the matter directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigating
under the same title, in a Court competent to try such subsequent
suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.”
9.1. The doctrine of res judicata, having a very ancient history,
embodies a rule of universal law and is a sum total of public policy
reflected in various maxims like ‘res judicata pro veritate occipitur’ ,
which means that a judicial decision must be accepted as correct; and
‘nemo debet bis vexari pro una et eadem causa ’, which means that
no man should be vexed twice for the same cause. The ancient history
of this doctrine and its consistent recognition could well be underscored
with reference to the following statement of law in the case of
Sheoparsan Singh and Ors. v. Ramnandan Prasad Narayan Singh
and Ors.: A.I.R. 1916 Privy Council 78 : -
“…But in view of the arguments addressed to them, their Lordships
desire to emphasise that the rule of res judicata, while founded
on ancient precedent, is dictated by a wisdom which is for al l
time.
“ ‘It has been well said,’ declared Lord Coke, ‘ interest
reipublicoe ut sit finis litium, otherwise great oppression might
be done under colour and pretence of law’ “.-(6 Coke, 9 A.)
Though the rule of the Code may be traced to an English source,
it embodies a doctrine in no way opposed to the spirit of the law
as expounded by the Hindu commentators. Vijnanesvara an d
Nilakantha include the plea of a former judgment among thos e
allowed by law, each citing for this purpose the text of Katyayana,
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
who escribes the plea thus: “If a person though defeated at la w
sue again he should be answered, ‘You were defeated formerly.
This is called the plea of former judgment.” [See “The
Mitakshara(Vyavahara),” Bk. II, ch. I, edited by J. R. Gharpure,
p. 14, and “The Mayuka,” Ch. I, sec. 1, p. 11 of Mandlik’s edition.]
And so the application of the rule by the Courts in India should be
influenced by no technical consideration of form, but by matter of
substance within the limits allowed by law.”
(emphasis supplied)
9.2. The contours of this doctrine of res judicata and its application
could be taken into comprehension by a reference to the Cons titution
Bench decision of this Court in the case of Daryao and Ors. v. State of
U.P. and Ors.: AIR 1961 SC 1457. In that case, after the writ petitions
filed before the High Court of Allahabad under Article 226 of the
Constitution of India were dismissed, the petitioners filed su bstantive
petitions in this Court under Article 32 of the Constitution of India for the
same relief and on the same grounds. In such petitions, this Court upheld
the objection that the decision of the High Court would operate as res
judicata while observing, inter alia, as under: -
“(9) But, is the rule of res judicata merely a technical rule or is it
based on high public policy? If the rule of res judicata itself embodies
a principle of public policy which in turn is an essential part of the
rule of law then the objection that the rule cannot be invoked
where fundamental rights are in question may lose much of it s
validity. Now, the rule of res judicata as indicated in S. 11 of the
Code of Civil Procedure has no doubt some technical aspects, for
instance the rule of constructive res judicata may be said to be
technical; but the basis on which the said rule rests is founded on
considerations of public policy. It is in the interest of the public at
large that a finality should attach to the binding decisions
pronounced by Courts of competent jurisdiction, and it is also in
the public interest that individuals should not be vexed twice over
with the same kind of litigation. If these two principles form the
foundation of the general rule of res judicata they cannot be treated
as irrelevant or inadmissible even in dealing with fundamental rights
in petitions filed under Art. 32.
477
(10) In considering the essential elements of res judicata
one inevitably harks back to the judgment of Sir William B. Hale
in the leading Duchess of Kingston’s case, 2 Smith Lead Ca s.
13th Ed. pp. 644, 645. Said Sir William B. Hale “from the variety
of cases relative to judgments being given in evidenc e in civil
suits, these two deductions seem to follow as generally true: First,
that the judgment of a court of concurrent jurisdiction, direct ly
upon the point, is as a plea, a bar, or as evidence, conclusive
between the same parties, upon the same matter, dir ectly in
question in another court; Secondly, that the judgment of a court
of exclusive jurisdiction, directly upon the point, is in like manner
conclusive upon the same matter, between the same par ties,
coming incidentally in question in another court for a different
purpose.” As has been observed by Halsbury, “the doctrine of res
judicata is not a technical doctrine applicable only to records; it is
a fundamental doctrine of all courts that there must be an end of
litigation”, Halsbury’s Laws of England, 3rd Ed., Vol. 15, Paragraph
357, p. 185. Halsbury also adds that the doctrine applies equally in
all courts, and it is immaterial in what court the former proceeding
was taken, provided only that it was a court of com petent
jurisdiction, or what form the proceeding took, provided it was
really for the same cause” (p. 187, paragraph 362). “Res judicata”,
it is observed in Corpus Juris, “is a rule of universal law pervading
every well regulated system of jurisprudence, and is put upon two
grounds, embodied in various maxims of the common law; the
one, public policy and necessity, which makes it to the interest of
the State that there should be an end to litigation — inte rest
republicae ut sit finis litium; the other, the hardship on the individual
that he should be vexed twice for the same cause — nemo debet
bis vexari pro eadem causa”, Corpus Juris, Vol. 34, p. 743…..
(11) The same question can be considered from another
point of view. If a judgment has been pronounced by a court of
competent jurisdiction it is binding between the parties unless it is
reversed or modified by appeal, revision or other pro cedure
prescribed by law. Therefore, if a judgment has been pronounced
by the High Court in a writ petition filed by a party rejecting his
prayer for the issue of an appropriate writ on the ground ei ther
that he had no fundamental right as pleaded by him or there has
been no contravention of the right proved or that the contravention
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
is justified by the Constitution itself, it must remain binding between
the parties unless it is attacked by adopting the procedure prescribed
by the Constitution itself. The binding character of judgment s
pronounced by courts of competent jurisdiction is itself an essential
part of the rule of law, and the rule of law obviously is the basis of
the administration of justice on which the Constitution lays so much
emphasis. As Halsbury has observed: “subject to appeal and to
being amended or set aside a judgment is conclusive as between
the parties and their privies, and is conclusive evidence against all
the world of its existence, date and legal conseque nces”
Halsbury’s Laws of England, 3rd Ed., Vol. 22, p. 780 paragraph
1660.
(emphasis supplied)
9.3. It is also equally relevant to reiterate that Section 11 CPC is
not the foundation of the doctrine of res judicata but is merely the
statutory recognition thereof and, hence, is not considered exhaustive of
the general principles of law. This doctrine, it is recognised, is conceived
in larger public interest and is founded on equity, justice a nd good
conscience. These aspects were tersely put by this Court in the case of
Lal Chand (dead) by L.Rs. and Ors. v. Radha Krishan : (1977) 2
SCC 88 in the following words: -
“19. … The fact that Section 11 of the Code of Civil Procedur e
cannot apply on its terms, the earlier proceeding befo re the
competent authority not being a suit, is no answer to the extension
of the principle underlying that section to the instant case. Section
11, it is long since settled, is not exhaustive and the principle which
motivates that section can be extended to cases which do not fall
strictly within the letter of the law. The issues involved in the two
proceedings are identical, those issues arise as between the same
parties and thirdly, the issue now sought to be raised was decided
finally by a competent quasi-judicial tribunal. The principle of res
judicata is conceived in the larger public interest which requires
that all litigation must, sooner than later, come to an end. Th e
principle is also founded on equity, justice and good conscience
which require that a party which has once succeeded on an issue
should not be permitted to be harassed by a multiplici ty of
proceedings involving determination of the same issue….”
(emphasis supplied)
479
9.4. It hardly needs any over-emphasis that but for this doctrine
of res judicata, the rights of the persons would remain entangled in
endless confusion and the very foundation of maintaining the rule of law
would be in jeopardy. Even if this doctrine carries some technical aspects,
as explained by this Court in Daryao (supra), it is in the interest of public
at large that a finality should attached to the binding deci sions of the
Courts of competent jurisdiction; and it is also in public int erest that
individual should not be vexed twice with the same kind of litigation. As
noticed, the Constitution Bench has placed this doctrine on a high pedestal,
treating it to be a part of rule of law.
9.5. Having taken into comprehension the object and framework
of doctrine of res judicata, a few ancillary principles, relevant to the
case at hand, may also be usefully noticed.
9.5.1. The principle that the doctrine of res judicata is attracted
not only in separate subsequent proceedings but also at subsequent stage
of the same proceedings is hardly of any doubt or dispute. A 3-Judge
Bench of this Court in the case of Y.B. Patil (supra), has tersely
underscored this principle of law in the following terms: -
“4. …It is well settled that principles of res judicata can be invoked
not only in separate subsequent proceedings, they also get attracted
in subsequent stage of the same proceedings. Once an order made
in the course of a proceeding becomes final, it would be binding at
the subsequent stage of that proceeding….”
9.5.2. It is also well-settled, as laid down in several decisions, that
even an erroneous decision remains binding on the parties to the same
litigation and concerning the same issue, if rendered between the same
parties by a Court of competent jurisdiction. In the case of Gorie Gouri
Naidu (supra), this Court, inter alia, said,
“4…..The law is well settled that even if erroneous, an inter -
party judgment binds the party if the court of competent jurisdiction
has decided the lis….”
9.5.3. In Makhija Construction & Engg. (P) Ltd. (supra), this
Court also clarified the distinction between a precedent and the operation
of the doctrine of res judicata in the following terms: -
“19. …A precedent operates to bind in similar situations in a distinct
case. Res judicata operates to bind parties to proceedings for no
other reason, but that there should be an end to litigation.”
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
9.5.4. In S. Nagaraj (supra), it was also made clear by this Court
that binding decisions cannot be ignored even on the principles of per
incuriam because those principles have relevance to the doctrine of
precedents but have no application to the doctrine of res judicata.
10. For what has been noticed and discussed in the preceding
paragraphs, it remains hardly a matter of doubt that the doctrine of res
judicata is fundamental to every well regulated system of jurisprudence,
for being founded on the consideration of public policy that a judicial
decision must be accepted as correct and that no person should be vexed
twice with the same kind of litigation. This doctrine of res judicata is
attracted not only in separate subsequent proceedings but also at the
subsequent stage of the same proceedings. Moreover, a binding decision
cannot lightly be ignored and even an erroneous decision remains binding
on the parties to the same litigation and concerning the sa me issue, if
rendered by a Court of competent jurisdiction. Such a binding decision
cannot be ignored even on the principle of per incuriam because that
principle applies to the precedents and not to the doctrine of res judicata.
10.1. In true application of these principles, it would appear that
the orders passed in these matters by the High Court on 20.04.2018 and
14.12.2018, as regards the issue of participation of the wi fe of the
appellant in these proceedings as a GPA holder of the appellant, remain
binding on the parties and cannot be ignored. In other words, this issue
concerning the capacity of the wife of the appellant to part icipate in
these proceedings as his GPA holder cannot be agitated over again in
these very proceedings, even if the earlier orders granting such permission
to her are suggested to be erroneous.
11. However, learned senior counsel for the contesting respondent
has strenuously argued, with reference to the decisions in Mathura
Prasad and Allahabad Development Authority (supra), that the said
orders dated 20.04.2018 and 14.12.2018 do not operate as res judicata.
In view of the submissions made on behalf of the contesting respondent,
we may examine the relevant features of the said cited cases in necessary
details.
11.1. In the case of Mathura Prasad (supra), the appellant
constructed buildings for commercial or residential purpos es on open
land in pursuance of lease granted by the respondent. His application to
the Civil Judge for determination of standard rent was, however, dismissed
481
on the ground that the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947 did not apply to open land leased for the construction
of such buildings. A Single Judge of the Bombay High Court confirmed
this order in a group of revision applications. However, in the case of
Vinayak Gopal Limaye v. Laxman Kashinath Athavale : ILR (1956)
Bom 827, the Bombay High Court decided that a building lease in an
open plot was not excluded from Section 6(1) of the said Act of 1947.
The view so taken by the Bombay High Court in Vinayak Gopal Limaye
(supra) was affirmed by this Court in the case of Mrs. Dossibai N. B.
Jeejeebhoy v. Hingoo Manohar Missa : (1962) 3 SCR 928 . Relying
upon this judgment, the appellant filed a fresh petition in the Co urt of
Small Causes, Bombay for an order determining the standard rent since
the area was located within the limits of Greater Bombay . The Trial
Judge rejected this application essentially on the consideration that the
matter had already been decided between the same parties in the earlier
proceedings for fixation of rent. The High Court affirmed the order so
passed and hence, the matter was in appeal before this Court .
11.1.1. In the aforesaid context, various features of the doctrine
of res judicata were explained by this Court in the relied upon passage
as follows: -
“11. It is true that in determining the application of the rule of res
judicata the Court is not concerned with the correctne ss or
otherwise of the earlier judgment. The matter in issue, if it is one
purely of fact, decided in the earlier proceeding by a compet ent
Court must in a subsequent litigation between the same parties be
regarded as finally decided and cannot be reopened. A mixed
question of law and fact determined in the earlier proceeding
between the same parties may not, for the same reaso n, be
questioned in a subsequent proceeding between the same parties.
But, where the decision is on a question of law i.e. the interpretation
of a statute, it will be res judicata in a subsequent proceeding
between the same parties where the cause of action is the same ,
for the expression “the matter in issue” in Section 11 of the Code
of Civil Procedure means the right litigated between the pa rties
i.e. the facts on which the right is claimed or denied and the law
applicable to the determination of that issue. Where, however, the
question is one purely of law and it relates to the jurisdiction of the
Court or a decision of the Court sanctioning something which is
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
illegal, by resort to the rule of res judicata a party affected by the
decision will not be precluded from challenging the validity of that
order under the rule of res judicata, for a rule of procedure cannot
supersede the law of the land.”
(emphasis supplied)
11.1.2. This Court held that in the given case, the earlier decision
of the Civil Judge that he had no jurisdiction to entertain the application
for determination of standard rent was plainly erroneous; and if such a
decision was regarded as conclusive, ‘ it will assume the status of a
special rule of law applicable to the parties relat ing to the
jurisdiction of the Court in derogation of the rule dec lared by the
Legislature’. Therefore, the operation of doctrine of res judicata was
ruled out in that case.
11.2. In the case of Allahabad Development Authority (supra),
the relevant aspects were that after a notification under Section 4(1) of
the Land Acquisition Act, 1894 (‘the Act of 1894’) for acquiring a large
extent of land for Transport Nagar Scheme, the enquiry under Sec tion
5-A was dispensed with in exercise of power under Section 17(1-A), as
amended by the Legislature of the State; and possession of land in question
was taken on 02.11.1977, whereby the land stood vested in the State
under Section 16 of the Act of 1894. However, the High Court pass ed
an order declaring that the acquisition proceedings stood lapsed by
operation of Section 11-A, which requires that after acquisition, an award
must be made within a period of two years from the date of publication
of declaration and if no award is made within that period, t he entire
proceeding for acquisition of land would lapse. The same question was
examined by this Court in Satendra Prasad Jain v. State of U.P.: (1993)
4 SCC 369 and Awadh Bihari Yadav v. State of Bihar : (1995) 6
SCC 31, where it was held that Section 11-A of the Act of 1894 would
not apply to the cases of land acquisition under Sectio n 17 where
possession had already been taken and the land stood vested in the State.
In the given context and while referring to a decision in the ca se of
Municipal Committee v. State of Punjab : (1969) 1 SCC 475, this
Court held as under: -
“6. In view of the above ratio, it is seen that when the legislature
has directed to act in a particular manner and the failu re to act
results in a consequence, the question is whether the previous
483
order operates as res judicata or estoppel as against th e persons
in dispute. When the previous decision was found to be erroneous
on its face, this Court held in the above judgment that it does not
operate as res judicata. We respectfully follow the ratio therein.
The principle of estoppel or res judicata does not apply where to
give effect to them would be to counter some statutory direction
or prohibition. A statutory direction or prohibition cann ot be
overridden or defeated by a previous judgment between the parties.
In view of the fact that land had already stood vested in the State
free from all encumbrances, the question of divesting does not
arise. After the vesting has taken place, the question of l apse of
notification under Section 4(1) and the declaration under Section
6 would not arise. Considered from this perspective, origin al
direction itself was erroneous and the later direction with regard
to delivery of possession of the land, in consequence, was not
valid in law…..”
(emphasis supplied)
11.3. Thus, in the case of Mathura Prasad (supra), this Court
observed that when the earlier decision on the question of jurisdi ction
was erroneous, it could not be treated as conclusive, else it would assume
a special status to rule of law applicable to the parties relating to the
jurisdiction, in derogation of the rule declared by the le gislature. In
Allahabad Development Authority (supra), this Court was concerned
with operation of the statutory direction and inapplicability of the provisions
of lapsing of acquisition where possession was already taken and the
land stood vested in the State. Simply put, in these cases, the doctrine of
res judicata has been held inapplicable in relation to the question of
jurisdiction and in relation to the question of statutory direction/prohibition.
12. The question in these appeals, therefore, is as to whether the
previous orders in relation to these proceedings, as passed by the High
Court on 20.04.2018 and 14.12.2018 between the same parties and dealing
with the same issues relating to the capacity of the wife of the appellant
in the present matters, could be said to be not conclusive and not operating
as res judicata because of any question of jurisdiction or of statutory
direction or prohibition.
13. What has been argued in this Court on behalf of the respondents
is that Section 32 of the Act of 1961 bars the advocates fr om seeking
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
permission of the Court and this provision entitles only the non-advocates
to seek such permission to plead on behalf of any party. Ac cording to
learned counsel of the respondents, this provision has been ignor ed in
the previous decisions.
13.1. Section 32 of the Act of 1961 reads as under: -
“32. Power of Court to permit appearances in particular
cases.—Notwithstanding anything contained in this Chapter, any
court, authority, or person may permit any person, not enrolled as
an advocate under this Act, to appear before it or him in a ny
particular case.”
14. We are unable to appreciate the contention which sugges ts
that the said Section 32 creates a bar for the wife of the appellant to
seek permission of the Court to appear on behalf of her husband in her
capacity as GPA holder because of she being an enrolled advocate. The
enabling provision of Section 32 of the Act of 1961, whereby any Court,
authority or person may permit any non-advocate to appear before it or
him in any particular case is difficult to be read as creating a corresponding
bar in giving permission to a GPA holder of a party to represent that
party as such, if the said GPA holder, during pendency of the proceedings
in the Court, gets enrolled as an advocate. In other words, t here does
not appear any statutory prohibition operating in the situation like that of
present case, for which the existing GPA holder of a party ca nnot be
given permission to appear only as the GPA holder, even if he/she has
been enrolled as an advocate.
14.1. As noticed, the meaning, purport and effect of the previous
concluded orders of the High Court dated 20.04.2018 and 14.12.2018
had been clear and unambiguous that in these cases, wife of the appellant
would be entitled to appear only as the GPA holder and not as an advocate.
We are unable to accept the submissions made on behalf of the contesting
respondent that the said orders by the High Court stand at conflict with
any statutory bar or prohibition or they relate to any such m andatory
provision of law which is going to be violated.
14.2. Apart from the above, we are clearly of the view that even
if it be assumed for the sake of arguments that there had been any error
in the previous orders dated 20.04.2018 and 14.12.2018, those orders,
having been rendered between the same parties and on the same i ssue
of appearance of the GPA holder in the same proceedings, indeed operate
as res judicata.
485
14.3. In the peculiar facts and circumstances of the present case,
where the only fortuitous event had been that wife of the appellant, who
was already acting as his General Power of Attorney holde r, later on
took the degree in law and got herself enrolled as an advocate, the High
Court had, in the previous rounds of proceedings, cautiously balance d
the requirements of law, particularly the requirements of CPC, the Civil
Rules of Practice in the State, and the Act of 1961 as als o the rules
made under the Act of 1961 by specifically providing that wif e of the
appellant shall appear only as his GPA holder and not as a n advocate.
No such question like that of jurisdiction or statutory prohibition arises
from the said orders dated 20.04.2018 and 14.12.2018 for which, the
issue concluded thereby could be reagitated at the subsequent stage of
these very proceedings by suggesting different interpretations.
15. At this juncture, we may also deal with the reason that h as
prevailed with the High Court in the order impugned.
15.1. As noticed, the High Court has chosen to brush aside the
said previous orders dated 20.04.2018 and 14.12.2018 by reproducing a
couple of paragraphs of the Division Bench decision of that High Court
in the case of Madupu Harinarayana (supra) and by holding that by
virtue of the said decision, the GPA holder cannot plead or argue for his
principal. The High Court has reproduced the following two passages of
the said decision in Madupu Harinarayana:
“28. A conspectus of Rules 1 and 2 of Order III of Code of
Civil Procedure, Section 2(a) and Sections 29, 30, 33, 34 of the
Advocates Act, Rule 2 of Section 34 Rules and Code of Criminal
Procedure would show that all the pleadings in a proceeding shall
be made by the party in person, or by his recognized agent. A
party in person, and a recognized agent, have to mak e an
appointment in writing (vakaltnama) duly authorizing the advocate
to appear and argue the case. Only an advocate entered on the
rolls of the Bar Council of Andhra Pradesh, who has been given
vakalat and which has been accepted by such advocate, can have
the right of audience on behalf of the party, or his recogniz ed
agnet, who engaged the advocate. Sections 29 and 30 of the
Advocates Act make it clear that advocates are the only
recognized class of persons entitled to pract5ise law, and such an
advocate should have been enrolled as such under the Advocates
Act. Section 32 of the Advocates Act empowers the court to
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
permit any non-advocate to appear in a particular case. This only
means that any person has to seek prior permission of the Court
to argue a case if he is not an advocate enrolled un der the
Advocates Act. Further, it is an offence for a non-advocate to
practice under the provisions of the Advocates Act. Section 45
prescribes a sentence of six months imprisonment.
31. The statutes and precedents are clear on the point. It is
only advocates, whose names are entered on the rolls of the state
Bar Council, who have the right to practice in any Court. If a
person practices in any Court without any such authority, and
without such an enrolment, it would be committing an offence
under Section 45 of the Advocates Act punishable wi th
imprisonment for a term which may extend to six mon ths.
Therefore the GPA Sri T.D.Dayal is not entitled to appear and
argue for the Appellant. He has no right of audience in this case
or any other case.”
15.2. With respect, we are unable to endorse the approach of the
High Court in this matter, particularly when reliance has been placed on
the decision in the case of Madupu Harinarayana (supra) without
taking note of the basic facts and the background aspects in whi ch the
said decision was rendered by the Court. The appellant of the said matter
had filed a suit for specific performance which was dismis sed by the
Trial Court. The decree of the Trial Court was affirmed by the High
Court and then, even the petitions seeking leave to appeal were dismissed
by this Court. Until that juncture, the appellant was being represented by
a duly instructed counsel, an enrolled advocate. Thereafter, the appellant
filed a writ petition under Article 32 of the Constitution of India in this
Court. It was lodged under Order XVIII Rule 5 of the Suprem e Court
Rules, 1966 because no reasonable cause was made out justify ing the
receipt of the writ petition. Then, IAs were filed by way of appeal against
the Registrar’s order, which were also dismissed. In these cases, before
this Court, one Mr. T.D. Dayal represented the appellant as his alleged
GPA holder, who also addressed certain communications to the Registry
of the Court that were also duly replied. Thereafter, a writ petition was
filed in the High Court and an affidavit in support thereof was filed by
the alleged GPA holder wherein, apart from the criticism of the judgment
of the Trial Court, even unfounded and unsubstantiated aspersions were
sought to be cast on the High Court and on this Court. The said w rit
487
petition was dismissed by the Single Judge of the High Court and then,
the matter was before the Division Bench in appeal. The app eal was
also conducted by the said alleged GPA holder. The Division Ben ch
noticed several features of the questionable dealings of the alleged GPA
holder and it was also noticed that even the copy of GPA was not annexed
to the writ petition or the writ appeal. The High Court found it t o be a
vexatious litigation by an interloper and being a gross abuse of the process
of Court while observing at the very beginning of the judgment as follows:-
“2. After giving a very patient hearing to Mr. T.D. Dayal, and
perusing various provisions of the Advocates Act, 1961 as well as
the decisions of the Supreme Court and of this Court in which he
himself figured either as a social activist or a GPA for parties to
the proceedings in the writ petitions, we are convinced that this is
vexatious litigation. This is yet another instance of busybo dies
and meddlesome interlopers resorting to filing frivolous c ases
before the highest Court of the State due to perceived injustice to
the community, or to the cause of a few gullible individuals whom
they represent…….”
15.3. The High Court also issued a slew of directions, including
that of debarring the said alleged GPA holder from takin g up any
proceedings in the Court and also registering Suo Motu Contempt case
for making unfounded and scurrilous remarks. We need not go into all
those details for the purpose of the present case; suffi ce it to observe
that the said decision proceeded on its own peculiar facts and there had
been a marked distinction of the points arising in the said case from the
point arising before the High Court in the present case. I n Madupu
Harinarayana (supra), the point for determination was as to whether a
GPA holder, who was not enrolled as an advocate, was having a right to
appear and plead before the Court, particularly when he has been found
to be involved in filing frivolous cases and making reckles s remarks
against the entire justice delivery system. In contrast, the point for
determination in the present case before the High Court was as to whether
the wife of the appellant, being his GPA holder and having been permitted
to appear as such despite having been enrolled as an advocate during
the pendency of proceedings, was not entitled to cross-examine the
witnesses. The said decision in Madupu Harinarayana, in any case,
could not have been pressed into service to override the concluded and
binding decisions between the same parties in the same proceedings at a
previous stage.
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
16. For what has been discussed hereinabove, we are of the view
that the aforesaid orders dated 20.04.2018 and 14.12.2018 operate as
res judicata and create a bar in raising of the issue again as regards
capacity of the wife of the appellant in these matters. The Hi gh Court
has fallen in grave error in ignoring the said previous inter partes binding
decisions.
17. In continuity with what has been observed hereinabove , we
are impelled to observe, as has rightly been contended on behalf of the
appellant, that in the order impugned, the High Court has mischaracterised
the issue before it. As noticed, the High Court has proceeded to observe
that the point for determination in the matter was as to ‘whether the
GPA holder of the plaintiff can be permitted to act li ke a counsel
and cross-examine witnesses’. It has been pointed out on behalf of the
plaintiff-appellant that his GPA holder (wife) never attempted to act like
an advocate and to cross-examine the witnesses in that capacity. In the
earlier rounds of proceedings, the High Court had specifically ordered
that the wife of the appellant would only act as power agent of appellant
and not in her professional capacity as an advocate. In view of the
above and in view of the objections thereafter raised by the contesting
respondent, the point for determination, in essence, before t he Court
was as to whether the wife of the appellant, being his GPA holder, was
not entitled to cross-examine the witnesses, as captured b y the Trial
Court in paragraph 5 of its order dated 07.02.2019. The Trial Court had
also noticed the objections of the contesting respondent that the wife of
the appellant, being a GPA holder, could only engage a lawyer but could
not participate in the Trial Court and examine the witnesses or argue the
matter. It was contended that though she was permitted to att end the
suit proceedings in-person, it did not confer her with the a uthority of
doing any such act which only a legal practitioner would do. The Trial
Court had rightly overruled such objections, particularly with reference
to the previous orders passed by the High Court.
17.1. Moreover, the errors on the part of the High Court in thi s
case are not confined to the erroneous framing of t he point for
determination and erroneous application of the decision in Madupu
Harinarayana (supra). In fact, reference to the previous orders dated
20.04.2018 and 14.12.2018 by the High Court in the background narrative
had also been incomplete and rather incorrect. It is noticed that in
paragraph 13 of the order impugned, the High Court read as if the previous
489
orders dated 20.04.2018 and 14.12.2018 stopped at observing that the
two capacities, of GPA holder and advocate, cannot be combined.
However, further to that, in the said orders dated 2 0.04.2018 and
14.12.2018, the High Court had precisely noticed that the wife of the
appellant was appearing only as a power agent and the order s of the
Trial Court were confirmed while clarifying that she would appear in-
person as a power agent and will not appear in her professional capacity.
This later part of the substance of the both the orders dated 20.04.2018
and 14.12.2018 appears to have not gone into the requisite consideration
of the High Court.
18. Thus, it is apparent that the High Court has viewed the entire
case from an altogether wrong angle, i.e., by misdirecting itself on the
real point for determination; by not taking into comprehension the meaning,
purport and effect of the previous binding orders dated 20.04.2018 and
14.12.2018 between the same parties in the same proceedings; a nd by
misapplication of the Division Bench decision of the same High Court.
This misdirected approach has resulted in the High Court ignoring the
doctrine of res judicata and issuing such directions which are squarely
opposite to the directions contained in the previous binding orders.
19. For what has been discussed and held hereinabov e, the
impugned order dated 28.06.2019 cannot sustain itself and is required to
be set aside.
20. The discussion until this juncture is itself sufficient to conclude
this matter. However, before closing, we may refer to a few other features
of the case.
20.1. A long deal of arguments has been made on behalf of the
respondents in this case on the point that as an officer of the Court, an
advocate cannot plead or cross-examine without vakalatnama; and as
regards the impact of Bar Council Rules, particularly on the standards
of professional conduct and etiquettes. Several decisions have been cited
to submit that the jurisprudence of this Court and the High Court does
not allow advocates to appear as Power of Attorney holders. In our
view, all such contentions remain entirely inapposite to the facts of the
present case for the simple reason that the matter i n issue stands
concluded by the previous decisions by the Trial Court and then by the
High Court. We are unable to find the said decisions operatin g in any
manner against statutory mandate. Various contentions that the wife of
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
the appellant being an advocate is likely to face the position of conflict of
interest and her disability to act as an advocate in the m atter in which
she is likely to have direct pecuniary interest, are all rather unnecessary
when viewed in the light of facts that as per the binding orders passed in
these cases, wife of the appellant would be appearing only as GPA holder
and not as an advocate.
20.2. In view of the above, we need not dilate on the othe r
contentions urged on behalf of the contesting respondent and counte r
thereto by the learned counsel for the appellant. However, we may take
note of an apprehension suggested in the submissions made on behalf of
the respondent that if the operation of Section 32 of the Act of 1961 is
not confined to non-advocates, it may additionally create scope for
unscrupulous advocates, who might have been suspended from practice
or might be engaged in other malpractices as per the Bar C ouncil of
India Rules, to circumvent the legal consequences by appearing as power
of attorney holders. This line of submissions is rather unnecessary and
overexpansive; and it does not correlate with the real matt er in issue
before us. However, we may observe that the permission under Section
32 of the Act of 1961, by its very nature, is to be granted on c ase-to-
case basis and could also be refused with reference to th e given set of
facts and circumstances referable to a particular case and any particular
person. In any case, for all the features and factors of the present case,
this line of submissions carries no relevance and does not re quire any
further comment.
21. For what has been discussed hereinabove, these appe als
succeed and are allowed; the impugned common order dated 28.06.2019
is set aside; and the orders passed by the Trial Court dated 07.02.2019
are restored.
21.1. The costs of this litigation in this Court shall follow the decision
in the main proceedings by the Trial Court.
Divya Pandey and Anurag Bhaskar Appeals allowed.
(Assisted by : Ajay, LCRA)